The judgment of the European Court of Justice in Intel v Commission: a procedural answer to a substantive question?

Abstract:

In a major judgment clarifying existing case law, the European Court of Justice has established in the Intel case that it is necessary to analyse all the circumstances in order to assess the status of exclusive rebates under Article 102, at least where the defendant has submitted credible arguments contesting the rebates’ ability to foreclose. The Court also held that where the Commission makes use of an as efficient competitor test (the “AEC test”) to assess the rebates’ ability to foreclose, and the defendant challenges the way in which the test was applied, the General Court is required to review those arguments. As a result, the Court remanded the case to the General Court.

There is some uncertainty as to what the outcome on remand will be if the General Court finds that Intel failed the AEC test with respect to one or more customers because the Court did not rule on Intel’s arguments concerning (i) very limited market coverage during the last two years of the infringement period, and (ii) the fact that in the case of two Original Equipment Manufacturers (”OEMs”) the rebates did not induce them to purchase all of most of their requirements from Intel.